snapImagine you are the operator of a paintball facility. A group of 15 blind individuals make a reservation without, however, mentioning they are blind. They arrive more than an hour late after a hike of several miles and are in a generally bad mood. One or two of them have trouble navigating the facility, with one running into a post and another almost falling off a deck. You conclude that they cannot, in the time available, learn to use the equipment and safely engage in the sport, so you decline to allow them to play. Naturally, you are sued under the ADA.

Another story of ADA absurdity? Not exactly. In Blind Industries & Services v. Route 40 Paintball Park, 2013 WL 1209649 (D.Md. 2013) the District Court concluded that under the circumstances it was reasonable for the owner to conclude that there was a direct threat to the health and safety of others and granted judgment for the defendant. It took more than a year of litigation and three days of trial to reach this result, so it probably didn’t look like much of a victory after the legal fees were paid, but at least the difficult position of the business owner was recognized.

That, and the principal case on which Route 40 relied, Lockett v. Catalina Channel Express, 496 F.3d 1061 (9th Cir.2007) are the good news end of the spectrum for business owners confronted with a disability that seems to create a dangerous situation. At the other end are cases in which District Judges seem to be blind to the practical realities of conducting business when the rules concerning accommodation of a direct threat can’t be applied without a law degree, a medical degree and days of expert testimony.

The general rule seems simple enough. 42 U.S.C. §12182(b)(3) provides that the general prohibitions against discrimination in the provision of services does not apply when the disabled “individual poses a direct threat to the health or safety of others” unless the threat can be eliminated by reasonable modifications of policy practices and procedures or the provision of auxiliary aids. In the Route 40 case the reasonable modification would have been to take extra time for training, but it wasn’t possible on that particular day because the group arrived late.

Unfortunately, the way some courts approach the “direct threat” exception requires god-like medical knowledge and the ability to predict how an individual judge or jury will view that knowledge. Doe v. Deer Mountain Day Camp, 682 F.Supp.2d 324 (S.D.N.Y. 2010) illustrates the problem. In Deer Mountain a boy with HIV wanted to go to a basketball camp. There were no symptoms of the disease, which was being effectively treated. The camp itself learned of his condition less than a week before the first day of camp. The camp nurse consulted with the boy’s physician and another doctor, and the camp concluded that he would constitute a direct threat to the health and safety of others because of the possibility of HIV transmission.

The District Court not only disagreed with this assessment; it found that the assessment was unreasonable under the circumstances. The reasoning shows just how high its expectations were with regard to the medical knowledge of the camp. First, it observed based on an earlier Supreme Court case that the reasonableness of an individual’s decision depends on how it matches “reasonable medical judgments of public health authorities,” including the U.S. Public Health Service, Centers for Disease Control and National Institutes of Health. Thus, the decision makers were required to know what these health authorities thought about HIV transmission.

Second, the District Court rejected the idea that a business might rely on the analysis of a doctor or nurse, quoting an earlier case in which the First Circuit held that one “cannot slavishly defer to a physician’s opinion without first pausing to assess the objective reasonableness of the physician’s conclusions.” That’s right, it isn’t enough to ask a doctor, you also have to independently analyze whether the doctor’s opinion is in line with what public health authorities say.

It is true that there was no snap judgment in the Deer Mountain case since the camp had almost a week in which to both consult medical professionals and then, supposing it did as the District Court expected, consult a second set of medical professionals to confirm the opinions of the first. However, there is a real sense in which time didn’t matter because although the court recognized that a “reasonable” conclusion might be found to be wrong, it was unwilling to say that relying on any opinion with which most experts disagreed was acceptable.  It required the camp to prove that it was right, not just that it was reasonable.

What if you don’t have a week? Suppose, for example, it is only a few minutes before the ferry leaves and a passenger shows up who may be a direct threat to others? Those questions take us back to Lockett v. Catalina Channel Express. In Lockett the woman selling tickets to the Catalina Island ferry knew that the premium seating area, the lounge, had a no animals policy because of the threat that animal allergies posed to some passengers. When a blind woman with a service dog requested a lounge ticket she was declined – her dog violated the no animals policy intended to protect the health and safety of other passengers. She sued under the ADA. The ferry line won on appeal, but only over the dissent of one of the three judges. That judge complained that the defendant did not conduct an individualized assessment, which would have included both investigating to see if any lounge passengers had allergies and then determining whether the specific allergies at issue were really life threatening. He specifically rejected the idea that any blanket policy could be applied without individual consideration of the facts in each individual case.

In the real world no one expects relatively low level employee like a ticket taker to do anything more than follow fixed policies and procedures. While federal court of appeals judges only hire folks that graduated at the top of their class from the best law schools, most businesses don’t have that luxury. They know that a sales clerk in a job that doesn’t even require a high school degree is in no position to conduct an individualized assessment of whether the risk posed by dander allergies is a genuine threat to health and safety or just an annoyance, particularly since that risk may depend in part on the individual breed of dog and how clean it is. Nonetheless, the dissenting judge in Lockett was probably a district judge at one time, and he is certainly not alone in believing that ordinary businesses are capable of making perfect medical decisions based on limited information in just a few minutes.

I’d like to close with some bullet proof policy that could deal with this problem, but the ADA and its implementing regulations assume that both the disabled and those operating public accommodations will be reasonable in dealing with each other, and that every public accommodation will have plenty of time to do an individualized analysis of the threat to public health and safety of presented by every person with every disability. Unfortunately, people are often not reasonable, and employees who are not doctors or nurses, and have not memorized all of the opinions of the CDC and NIH, must make snap judgments about what constitutes a threat to health and safety. Unless and until there is statutory or regulatory reform, which seems unlikely to happen any time soon, businesses will have to decide whether to err on the side of caution and face a lawsuit by a disabled person, or avoid the ADA lawsuit and perhaps end up on the wrong end of a wrongful injury or death claim.